State v. Thomas
| Decision Date | 30 July 2021 |
| Docket Number | Appeal No. 2020AP32-CR |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Oscar C. THOMAS, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of John T. Wasielewski of Wasielewski & Erickson, Milwaukee.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Sonya Bice, assistant attorney general, and Joshua L. Kaul, attorney general.
Before Neubauer, C.J., Reilly, P.J., and Davis, J.
¶1 In 2007, Oscar C. Thomas was charged with first-degree intentional homicide, first-degree sexual assault, and false imprisonment in the death of his wife,1 Joyce. The autopsy revealed that Joyce died from "[s]trangulation due to physical assault." Thomas was convicted of all three charges by a jury. He appealed, we affirmed, and our supreme court denied review. State v. Thomas , No. 2010AP1606-CR, unpublished slip op. ¶1, 2012 WI App 1 (WI App Nov. 9, 2011), review denied, 2012 WI 45, 340 Wis. 2d 542, 811 N.W.2d 818. Thomas pursued federal habeas corpus relief, Thomas v. Clements , 789 F.3d 760 (7th Cir. 2015),2 and was granted a new trial.
¶2 Thomas was retried in 2018, again convicted of all charges, and sentenced to life imprisonment. Thomas's postconviction motion was denied by the circuit court, and he appeals from his judgment of conviction and from the order denying his postconviction motion. For the reasons that follow, we affirm.
¶3 Thomas makes three main arguments: (1) the "corroboration rule" was violated, as the evidence for first-degree sexual assault consisted entirely of his uncorroborated statement; (2) his Confrontation Clause rights were violated when the court allowed the State to present inadmissible hearsay (testimonial DNA test results) to the jury via its cross-examination of his defense expert; and (3) his right to a fair and impartial jury was violated when the circuit court refused to strike a juror that was objectively biased. We address each of Thomas's arguments below along with the facts relevant to that issue.
¶4 Thomas argues that the evidence presented at trial was insufficient to convict him of first-degree sexual assault, as the State failed to satisfy the corroboration rule. The corroboration rule is a common-law standard meant to "ensure[ ] that a conviction does not stand when there is an absence of any evidence independent of the defendant's confession that the crime in fact occurred." State v. Bannister , 2007 WI 86, ¶¶22-23, 302 Wis. 2d 158, 734 N.W.2d 892. "A conviction will not stand on the basis of a defendant's confession alone." Id. , ¶23. Under the corroboration rule, the State must present evidence corroborating "any significant fact" in the defendant's confession. Id. , ¶27 (citation omitted). In Bannister , our supreme court clarified the standard as follows:
All the elements of the crime do not have to be proved independently of an accused's confession; however, there must be some corroboration of the confession in order to support a conviction. Such corroboration is required in order to produce a confidence in the truth of the confession. The corroboration, however, can be far less than is necessary to establish the crime independently of the confession. If there is corroboration of any significant fact, that is sufficient under the Wisconsin test.
Id. , ¶26 (citation omitted).
¶5 "When a court addresses a defendant's claim that his or her confession was insufficiently corroborated, it examines the sufficiency of evidence presented at trial." Id. , ¶32. As we consider the application of the corroboration rule after a jury's verdict, we review the facts presented at trial in the light most favorable to the verdict. See State v. Poellinger , 153 Wis. 2d 493, 506-07, 451 N.W.2d 752 (1990). We review whether the facts fulfill the standard for the corroboration rule as a question of law. Bannister , 302 Wis. 2d 158, ¶22, 734 N.W.2d 892 ; Peplinski v. Fobe's Roofing, Inc. , 193 Wis. 2d 6, 18, 531 N.W.2d 597 (1995).
¶6 Thomas gave three formal statements to police during the investigation of Joyce's death.3 In the first, Thomas reported to police that he and a friend were smoking crack in the basement that evening and that Joyce had been complaining of chest and ear pain, so he periodically checked on her in their apartment. As it related to the sexual assault charge, Thomas stated that after midnight, when he went upstairs to check on Joyce, he watched a pornography video and he and Joyce engaged in consensual sex. Thomas explained that during the encounter, he and Joyce fell out of bed together, but Joyce was not complaining of any injuries, except that her chest continued to hurt. According to Thomas, he went back to the basement, then left the apartment for a while, and when he returned to check on Joyce he found her on the floor next to the bed, at which point he called 911.
¶7 At the time of Thomas's second statement to police, he was not originally under arrest, but he was placed under arrest during the interview, read his Miranda4 rights, waived them, and continued speaking to police. During this interview, Thomas again stated that he was smoking crack in the basement with a friend, but he "kept going upstairs because [he] didn't want Joyce to get suspicious about why [he] was in the basement." Thomas reported that he left to purchase more crack, came back home and took the drugs as well as some prescribed medication, and then watched the pornography video. Again he indicated that he initiated sex with Joyce and they fell out of bed, but Joyce was not injured. Thomas and Joyce continued to have sex on the floor with "Joyce laying on her stomach" and during that time Thomas stated that he "had [his] left arm ... up around her neck." According to Thomas, Joyce went to use the bathroom and he continued to watch the video and smoke crack. When Joyce returned, she commented on Thomas watching the video and laid back down on the bed. Thomas then reported the following incident transpired:
I then jumped on her hip area and I was humping. I was just messing around when I told her I had time for a quickie. I believe that Joyce was wearing her underpants, and I'm not sure if she was wearing a bra. I rolled Joyce over, and we went back down on the floor. Joyce was laying on her left side, and I was on my left side behind her. I had my left arm was around Joyce's neck. I didn't think I was squeezing hard, but Joyce was struggling and was yelling for me to stop and to quit it. Joyce's feet were kicking the floor while she was telling me to stop. Joyce was telling me she loved me and for me to quit playing. I kept squeezing for a little while until she said she would bite the shit out of me. Joyce's breathing started to slow down, so I turned her loose. After I turned her loose, Joyce was breathing funny and looking at me. I got up and left.
¶8 Thomas indicated that he left the apartment with his friend, and when he returned he found Joyce face down on the floor. He tried to pick her up and put her on the bed, but her face hit the bed, and then she fell and her face hit the floor. Thomas called 911 and did chest compressions until an officer arrived. In his statement to police, he asserted:
¶9 The Thomases’ neighbor, Erika Cruz, also testified regarding her recollections of that evening. She lived in the apartment immediately below the Thomases’. At approximately 2:00 a.m., noises coming from above woke her. She reported "a lot of noise, people fighting, a lot of noise like screaming," in particular a woman screaming. Cruz testified that she heard the woman say, "Stop, stop, I love you, I love you." Then she heard "something [fall] on the ground—something big, quite big, and then [she] heard silence." According to Cruz, after the silence, she heard moving furniture, a door open, and someone walking out of the apartment. She looked out the window and saw Thomas leaving the apartment.
¶10 During the investigation, the police recovered the pornography video that Thomas said he watched. A sexual assault kit was also conducted on Joyce during the autopsy, but no physical evidence of sexual intercourse was found, including no DNA evidence or injuries to Joyce's genitals.
¶11 Thomas argues that nothing in the evidence apart from his statements corroborate the sexual assault conviction. In particular, he argues that the sexual assault kit revealed no sexual activity, consensual or otherwise. In contrast, the State argues that the video and Cruz's testimony provides sufficient facts to corroborate Thomas's confession.5
¶12 We agree with the State that the recovery of the pornography video as well as Cruz's testimony regarding what she heard Joyce yell that morning constitute significant facts under the law. Thomas's confession included two specific facts: (1) he watched a pornography video before "humping" Joyce's hip and (2) when he was "humping" her hip area he had his arm around Joyce's neck and she was "struggling and yelling for [Thomas] to stop" and "telling [him] she loved" him. Both facts were corroborated. The recovery of the video by police corroborated Thomas's statement that he watched the video, and Cruz's testimony that she heard fighting and a woman say, "Stop, stop, I love you, I love you" corroborates Thomas's recollection of his interactions with Joyce.
¶13 Case law is clear that "[a] significant fact is one that gives confidence that the crime the defendant confessed to actually occur[ed]." Bannister , 302 Wis. 2d 158, ¶31, 734 N.W.2d 892. It is not necessary that the significant fact "either independently establish the specific elements of the crime or independently link the...
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